Tuesday, June 18, 2013


Let’s step back for just a second or two and stop all the rhetoric and dramatizations and mudslinging, can we?  Just for a little while, at least for long enough to get all the emotions out of the way, so we can take an honest, objective look at what is really going on between these two industries; one government and the other private sector.

Sometimes participants in a dialogue get so invested in their side of an issue that there is no longer meaningful dialogue but only heated debate.  Would today’s Washington, D.C. serve as an example?

So how about it? Can we, just this once, give each side the benefit of the doubt as far as having good intentions is concerned? Can we do that? Assuming that we can, let’s see where it leads us.

Personally (and I have been just as engaged in the “us against them” game as anyone), I am willing to concede that both sides want the same things: (1) for defendants released pending trial to come back to court and (2) for that defendant not to create harm to another person while awaiting that court date.

Now, to be sure, it is entirely possible that the motives on either side may be different.  But actually, I sometimes wonder about even that.  Are not each of the people involved, whether they be pretrial release employees or independent sellers of commercial bail bonds both doing what they do as a means of making a living?  Come on now, it’s OK to admit that. There is nothing wrong with that, for goodness sake. “The laborer is worthy of his hire” (Luke 10:7). Here the pretrial service agency employee may say, “Yes, but I’m different, because I truly care also about the defendant.” So let’s give the bondsman the right to be similarly motivated; since  we are putting aside, for this little while, the aspersions, right?

Then where are we, at this point in our exercise? What do we know? Well, we are all trying to make a living from what we do and we all also have empathy for the defendant. Also, we agree that we all want the defendant to make his court appearances and not to engage in misconduct while awaiting disposition of his case. Right? It seems that we can surely all be in one accord on these principles.

So then what is left as a basis of disagreement between the sides?  It surely can be nothing more or less than which side’s approach to release of the defendant has the greater “utility”.  In the mid-1800s an English philosopher named John Stuart Mill introduced “utilitarianism”: a method for measuring the effectiveness or “value”, if you will, of any idea, system or rule.  He suggested that one of these things is only as “good” as it is “useful”. But that begs a question, doesn’t it? How do we know what is, or conversely is not, “useful”?  Mill didn’t leave us in the dark on this. He said that thing is useful which generates the greatest amount of benefit for the greatest number of people.  Particularizing it to our discussion, then, it would go something like this: “That system of release pending trial is best which creates the greatest quantum of benefit to the largest number of participants in a given criminal case”. Are we all still in agreement on principle (I am trying hard here to stick to propositions with which neither side can reasonably have an axe to grind)?

OK. Now, who are these “participants”? Let’s see if we can agree on their identities. Would they not be: (1) the accused, (2) the court, (3) the victim and (4) the community at large?  If we are correct thus far, then the next question is: what system of release would best serve the interests of the greatest number of persons so involved?  Would it not be that system, as we have already observed, which gets the defendant to court and minimizes the likelihood of misconduct during release?  There is no room for disagreement here, is there?  I wouldn't think so.

So (and please, let’s continue our objective approach here), is there a way to know the true answer to our key questions as stated above?  Certainly, the best place(s) to go for such an answer would be any credible (unbiased, qualified and professional) studies designed to provide that answer. No objection for either side so far, right?

That drives the next question then, doesn’t it?  Are there such studies?  The unqualified answer is: yes, there are. Let’s mention here just three of these: (1) the recurring studies performed by The Bureau Of Justice Statistics arm of The United State Department Of Justice, (2) The University Of Chicago School of Law study and (3) the very recent University Of Texas at Dallas study performed in Dallas County, Texas.

Were these studies in sync on our key points of utilitarian interest? They were. They all reported that the private sector commercial bail industry provided superior performance, across the board.

You will note here, I hope, that I have tried very hard to be analytical rather than confrontational. I have not discussed, for example: great economic benefits disparities, best return on taxpayer investments differences or preservation of court integrity advantages.  I have tried to stick to “measurable” qualities of utility alone, and I have confined myself exclusively to those key performance requirements that we agreed upon at the outset.

In one final effort at demonstrating attempted lack of bias and fairness of approach, I sincerely invite any who find fault with my analysis to please share with me their rationale. I would be most interested and appreciative.